Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

Back in March, we reported on a North Carolina federal court's dismissal of a defamation claim brought against two out-of-state publishers and an out-of-state author based on a lack of personal jurisdiction.  In that case, Judge Louise W. Flanagan rejected plaintiff's argument that simply because a handful of books had been sold in North Carolina in the "stream of commerce," the court could exercise jurisdiction over the defendants.

Judge Flanagan wrote that:

"[t]o permit a state to assert jurisdiction over any person in the country whose product is sold in the state simply because a person must expect that to happen destroys the notion of individual sovereignties inherent in our system of federalism."

Since that decision, the "stream of commerce" argument has garnered substantial attention from the courts.  In June, the United States Supreme Court reversed 9-0 a decision by the North Carolina Court of Appeals that allowed a North Carolina state court to exercise jurisdiction over several foreign affiliates of Goodyear based on a stream of commerce argument much like the one Judge Flanagan rejected.  In that case, Goodyear Dunlop Tires Operations, S.A. v. Brown, Justice Ginsberg write for the Court:

Under the sprawling view of general jurisdiction urged by respondents and embraced by the North Carolina Court of Appeals, any substantial manufacturer or seller of goods would be amenable to suit, onany claim for relief, wherever its products are distributed.

Finally, in August, the North Carolina Business Court in Charlotte dismissed a libel claim brought in North Carolina against, among others, a TV network from Chennai, India called Sun TV.  The complaint alleged that Sun TV, which broadcasts its programs on Dish Network, caused defamatory statements about the plaintiffs to be broadcast to North Carolina subscribers.  Alleging that it owned no property in North Carolina, did no business in North Carolina, and did not contract with anyone in North Carolina, Sun TV moved to dismiss for lack of personal jurisdiction.

Citing Goodyear Dunlop Tires, the court rejected plaintiffs' argument that jurisdiction was appropriate because Sun TV broadcasts its signal knowing that it might reach Dish subscribers in North Carolina.  More specifically, the court held that while the "stream of commerce" argument had been applied in product liability cases, it had never been applied in North Carolina to a defamation action.  The court declined to be the first.

This flurry of personal jurisdiction cases has affirmed the principle that in defamation cases, plaintiffs cannot simply rely on the theory that the publication at issue "ended up" in the forum state.  This is an important defense for defamation defendants to remember.

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As expected, the U.S. Supreme Court announced yesterday that it has agreed to hear the Fox (fleeting expletives) and ABC (fleeting nudity) cases in the next term. The Court has agreed to determine whether the FCC’s current indecency enforcement policy violates the free speech rights of broadcasters or is unconstitutionally vague. Justice Sotomayor did not participate in the decision to accept the cases for review.

We have previously written about the Supreme Court's initial decision in the Fox case, which centered upon whether the FCC's policy concerning fleeting expletives passed muster under the Administrative Procedure Act (the Court ruled that it did, in a 5-4 decision). The Supreme Court's action yesterday means it will now take up the First Amendment implications of the FCC's indecency regime, which the Court did not address in its initial decision.

We will follow the progress of this case closely.

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We previously wrote here and here about cases involving wiretapping prosecutions as a result of recording police activities.  In addition to running afoul of wiretapping statutes, citizens or journalists who videotape or record the police have also been arrested for violating state obstruction statutes, in certain circumstances. Two such cases are discussed below.

For example, in Berglund v. City of Maplewood, two journalists who hosted a public access cable program were arrested for videotaping their own arrest. The journalists refused to pay a $15 fee to attend a public event, which they intended to film and show on their cable program, and they were asked to leave by the police because they refused to pay. The police department alleged that a verbal and physical altercation with the journalists ensued and that force was necessary to subdue at least one of them. The journalists were charged with disorderly conduct and obstructing legal process.

The journalists captured the altercation on videotape. The police confiscated the tape at the scene without a warrant. Later that evening, the police viewed the tape and made a copy to give to the journalists, keeping the original as evidence. Two days later, one of the journalists obtained the copy from the police.  The video was shown on the journalists' cable program a few days later.

The journalists later filed a Section 1983 claim against the city and the police officers alleging the officers violated the journalists’ First, Fourth, and Fourteenth Amendment rights by, among other things, seizing the videotape, viewing and copying the tape, preventing the plaintiffs from gathering and disseminating information, refusing to return the tape, and controlling the tape’s publication.

With regard to the alleged First Amendment violation, the U.S. District Court for the District of Minnesota held that there was no violation. The court recognized that the First Amendment protects the right to gather information, but stated that the right is not absolute. (Other courts have held that newsgathering activities receive First Amendment protection.) The court reasoned, as the U.S. Supreme Court had before it, that the First Amendment does not guarantee the media a special right of access to information that is not available to the public generally. The court wrote:

Here, plaintiffs had no greater right than the public to gather information at this event. Like all other members of the public, plaintiffs only had access to the information at the event if they paid the $15 attendance fee. Because they refused to pay the $15 attendance fee, they had no right to the information at the event under the First Amendment. Thus, defendants did not violate plaintiffs’ First Amendment right by seizing the videotape and removing plaintiffs from the event.

The court granted summary judgment in favor of the defendants on all the plaintiffs’ claims, including the First Amendment-based claim.

Berglund illustrates the application of obstruction laws to a particular situation where journalists videotaped the police in the course of their public duties. In Berglund, the obstruction statute applied in part because the plaintiffs tried to assert a greater right to be at an event than the general public. Of course, the U.S. Supreme Court has long been hostile to the view that the press enjoys greater First Amendment protection than the general public. See, e.g., Branzburg v. Hayes. 

A recent North Carolina case also involves application of a state obstruction statute to a citizen who videotaped police conduct.  The Salisbury Post reported in August 2010 that a woman in Salisbury, N.C., was found guilty of resisting, obstructing, and delaying an officer after she refused an officer’s order to go inside her home while she filmed a traffic stop from her front porch. (Video of the incident is posted here.) According to the Salisbury Post’s coverage, the judge reasoned that the woman could have observed the incident from inside her home and should have respected the officer’s request. The Rowan County District Court sentenced the woman to 6 months of probation and community service.

Presumably, this Salisbury woman was charged with violating N.C. Gen. Stat. § 14-233, which provides, “[i]f any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.” The elements of the offense are: (1) that the victim was a public officer; (2) that the arrestee knew or had reasonable grounds to believe that the victim was a public officer; (3) that the victim was discharging or attempting to discharge a duty of his office; (4) that the arrestee resisted, delayed, or obstructed the victim in discharging or attempting to discharge a duty of his office; and (5) that the arrestee acted willfully and unlawfully, that is intentionally and without justification or excuse.

According to the U.S. District Court for the Eastern District of North Carolina in Bostic v. Rodriguez, the purpose of § 14-233 is “'to enforce orderly conduct in the important mission of preserving the peace, carrying out the judgments and orders of the court, and upholding the dignity of the law." The statute “‘is concerned with acts threatening a public officer with injury only insofar as they interfere with the performance of his official duties.’”

Section 14-233 has been found not to apply to communications simply intended to assert rights, seek clarification, or obtain information in a peaceful way. Indeed, “merely remonstrating with an officer . . . or criticizing or questioning an officer while he is performing his duty, when done in an orderly manner, does not amount to obstructing or delaying an officer in the performance of his duties.” However, actual physical force or assault, or permanently preventing the officer from discharging his duties, are not necessary to violate § 14-233. The state must merely prove that “the officer was obstructed or interfered with, and that such obstruction or interference was willful on the part of the defendant.” State v. Burton, 108 N.C. App. 219, 225, 423 S.E.2d 484, 488 (1992).

It appears that § 14-233 may be used in a manner that limits the right of citizens to record the police (to the extent there is such a right recognized by the courts) in those instances where the recording hampers the officer’s ability to perform his duties—for example, hampering the officer in safely executing a traffic stop. The application of the statute appears to require a case-by-case analysis of the facts of the particular incident.

In the case of the Salisbury woman, it appears that her refusal to heed the officer’s order to go inside her home while the officer dealt with two occupants of a car that had previously given chase was sufficient evidence of obstruction. Unfortunately, neither a transcript of the hearing nor a copy of the written order explaining the court’s analysis of the case were available.

The Berglund and Salisbury cases demonstrate that journalists or citizens who record the police may have to contend not only with wiretapping statutes, as we discussed earlier, but obstruction statutes, as well. 

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In two recent posts, linked here and here, we discussed wiretapping arrests for videotaping or recording the police. One of the potential results of such an arrest is a Section 1983 lawsuit based, in part, on a violation of the arrestee’s First Amendment rights. It is in these cases that the “right to record the police” has been most directly confronted by the courts. 

As discussed below, in some cases courts have looked favorably on such claims, while in others cases they have not.

The U.S. Court of Appeals for the Third Circuit dealt with the issue in the recent case Kelly v. Borough of Carlisle. In Kelly, the plaintiff filed a civil lawsuit under 42 U.S.C. Section 1983 claiming that his constitutional rights were violated when he was arrested for filming with his hand-held video camera a police officer during a traffic stop. The plaintiff was a passenger in the truck that was stopped for speeding and violating a bumper height restriction, and he turned on the video camera (which he claimed was visible in his lap) during the course of the traffic stop after, he claimed, the officer began yelling at the driver. Toward the end of the traffic stop, the officer informed the plaintiff and the driver that he was taping their interaction using a car-mounted video camera and a microphone on the officer’s shirt. The officer then observed the plaintiff was recording him. Believing the recording by the plaintiff was a violation of the Pennsylvania wiretapping statute, the officer ordered the plaintiff to turn over the camera, which the plaintiff did. After returning to his patrol car and speaking to an assistant district attorney, the officer called for additional police assistance and arrested the plaintiff for violating the wiretap statute.

The charges against Kelly were later dropped, but he filed a Section 1983 lawsuit alleging First and Fourth Amendment violations by the officer and the city. The district court granted the defendant-officer’s summary judgment motion based on qualified immunity and granted the defendant-city’s summary judgment motion based on the plaintiff’s failure to present facts sufficient to establish municipal liability.

The first issue addressed by the Third Circuit on appeal was whether qualified immunity applied to the officer’s actions. For qualified immunity to apply, and shield the government officer from liability for civil damages, his conduct must not have violated “‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Therefore, with respect to the alleged First Amendment violation, the question for the Third Circuit in Kelly was whether there is a “clearly established” right to videotape the police.

In reaching its conclusion, the Third Circuit analyzed cases from district courts within the Third Circuit as well as federal courts in other jurisdictions (these decisions are discussed below). It ultimately found there was insufficient case law demonstrating a “clearly established” right to record the police at the time the defendant was arrested.

The court further stated that its decision on the First Amendment question was supported by the fact that none of the cases reviewed involved traffic stops—an activity the U.S. Supreme Court has found to be “inherently dangerous.” Thus, the court determined that the right to videotape police officers during traffic stops was not clearly established, and the police officer was entitled to qualified immunity on the alleged First Amendment violation.

In synthesizing earlier precedents, the Third Circuit in Kelly found a distinction between videotaping with an expressive purpose, which may be protected by the First Amendment, and videotaping without an expressive purpose, which may not be protected.

For example, the Third Circuit in Kelly cited Robinson v. Fetterman, in which the U.S. District Court for the Eastern District of Pennsylvania held that there is a free speech right to film police officers in the performance of their public duties. This case involved a citizen who videotaped state troopers conducting truck inspections on a local road because the citizen was concerned about the safety of the inspections. The citizen filmed the troopers from about 20 to 30 feet away, without interfering in their activities, and with the permission of the landowner from whose property he conducted his videotaping activities. Nevertheless, the troopers arrested him for harassment under a state statute. At trial, the citizen was found guilty of harassment, but the charges were dismissed on appeal, and he later filed a Section 1983 lawsuit against the troopers.

In analyzing the Section 1983 claims made by the plaintiff in Robinson, the district court stated the following:

The activities of the police, like those of other public officials, are subject to public scrutiny. Indeed, “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” Although Robinson need not assert any particular reason for videotaping the troopers, he was doing so in order to make a visual record of what he believed was the unsafe manner in which they were performing their duties. He had previously talked to . . . a Representative in the Pennsylvania General Assembly, about his concerns. Robinson’s right to free speech encompasses the right to receive information and ideas. He also has a First Amendment right to express his concern about the safety of the truck inspections to the appropriate government agency or officials, whether his expression takes the form of speech or conduct. Videotaping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence, as it did in this case. In sum, there can be no doubt that the free speech clause of the Constitution protected Robinson as he videotaped the defendants on October 23, 2002.

Therefore, the district court found the troopers liable for violating Robinson’s First Amendment right to videotape police conduct. The Third Circuit in Kelly recognized this case as suggesting a “broad right to videotape the police.”

The Third Circuit in Kelly also examined the Eleventh Circuit’s decision in Smith v. City of Cumming, which involved a couple who filed a Section 1983 lawsuit alleging that the city police harassed them and prevented them from videotaping police actions. Here, the Eleventh Circuit stated that the plaintiffs enjoyed a “First Amendment right, subject to reasonable time, manner and place restrictions, to photograph and videotape police conduct.” The court continued, citing a long string of federal trial and appellate court cases, “[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” Although the Eleventh Circuit clearly recognized the First Amendment right to videotape police activities, the court affirmed the lower court’s grant of summary judgment in favor of the defendants because the plaintiffs failed to show the defendants had violated that right. However, as in Robinson, the Third Circuit recognized the Eleventh Circuit in Smith announced a broad right to record the police.

The Third Circuit in Kelly also analyzed the Ninth Circuit’s decision in Fordyce v. City of Seattle, in reaching its conclusion. Fordyce involved a Section 1983 plaintiff, an activist and "amateur journalist," who was arrested for violating a Washington state wiretap statute when he videotaped (using audio and video) a public march without obtaining the consent of the bystanders he recorded. Ultimately, the Ninth Circuit held that qualified immunity applied to the officer’s arrest of the plaintiff because a reasonable officer could have believed the plaintiff/arrestee was recording a private conversation in violation of the statute. But in doing so, the court suggested that there is a First Amendment right to “film matters of public interest.” Police conduct in the course of carrying out their public duties would, presumably, qualify as a matter of public interest.

In spite of these cases that support a First Amendment right to record the police, the Third Circuit in Kelly found persuasive other cases that would limit that right (if any). The U.S. District Court of the District of New Jersey in Pomykacz v. Borough of West Wildwood held that photographing a police officer in connection with a citizen’s political activism was protected by the First Amendment. The Section 1983 plaintiff, suspecting an inappropriate romantic relationship between a police officer and the mayor of West Wildwood that created a potential conflict of interest, nepotism, and preferential treatment, took photographs of the officer and the mayor, and was then arrested for stalking. In evaluating the defendants motion for summary judgment, the district court found sufficient evidence that the plaintiff, a self-proclaimed “citizen-activist,” was a concerned citizen “who at times spoke her mind to Borough officials and other citizens about her concerns regarding the official conduct of the police department and the mayor. Such speech is clearly protected by the First Amendment.” However, the district court declined the invitation to rule that videotaping or photographing the police in the course of their duties is, per se, protected by the First Amendment. In a footnote, the court wrote:

Pomykacz makes the blanket assertion that “the observation and monitoring of public officials is protected by the [F]irst [A]mendment.” The Court does not necessarily agree. An argument can be made that the act of photographing, in the abstract, is not sufficiently expressive or communicative and therefore not within the scope of First Amendment protection—even when the subject of the photography is a public servant. . . . Indeed, the Third Circuit has stated, albeit in dicta, that “videotaping or photographing the police in the performance of their duties on public property may be a protected activity. . . . [P]hotography or videography that has a communicative or expressive purpose enjoys some First Amendment protection.”  However, in this case the record supports the conclusion that Pomykacz’s photography and monitoring was part and parcel of her political activism and that Officer Ferentz and Mayor Fox knew as much. Pomykacz expressed her concerns about construction at the municipal building and the relationship between Officer Ferentz and Mayor Fox. She was arrested because, among other things, she took a picture of Officer Ferentz in the municipal building while Mayor Fox was there. Thus the photography was tightly intertwined with Pomykacz’s speech and it is appropriate to address her speech and conduct together.

The district court in Pomykacz ultimately denied the defendants’ summary judgment motion with respect to the plaintiff’s Section 1983 claim based on the First Amendment violation.

Finally, the Third Circuit in Kelly also considered its own earlier decision in Gilles v. Davis. Gilles involved two plaintiffs—one a campus evangelist and the other a member of his campus ministry who videotaped the other man preaching provocatively to a group of students. After they were arrested for disorderly conduct, they brought a Section 1983 claim against the arresting officers. Their First Amendment claim based on the videotaping activity was dealt with in a footnote. The Third Circuit wrote in dicta:  "[V]ideotaping does not constitute a protected First Amendment activity. But videotaping or photographing the police in the performance of their duties on public property may be a protected activity. More generally, photography or videography that has a communicative or expressive purpose enjoys some First Amendment protection."

In other words, the Third Circuit suggested in Gilles that videotaping the police in the course of carrying out their public duties may be a protected activity—but is not absolutely so. The determinative factor for the Third Circuit was whether the videotaping was done with a communicative or expressive purpose.

In summary, the Third Circuit in Kelly relied on cases such as Robinson, Smith, Fordyce, Pomykacz, and Gilles, as a collective, for the proposition that videotaping the police with an expressive purpose may be protected by the First Amendment, while videotaping the police without an expressive purpose may not be protected. The Third Circuit did not offer any test or standard to determine when a videotape is made with an expressive purpose, so, presumably, the purpose of the filming must be analyzed based on the facts of each particular case.

For the average citizen, demonstrating that videotaping the police was done with an expressive purpose may be a challenge, but, presumably, posting video to a blog or YouTube would meet the threshold. For a journalist, demonstrating an expressive purpose would presumably be easier as taking video is part of the newsgathering and publication process.

Whether or not other circuits concur with the Third Circuit’s analysis in Kelly remains to be seen as case law develops further.

* * *

Now that we have explored wiretapping arrests following incidents when citizens record police activity, and the Section 1983 claims that sometimes follow such arrests, in our next and final post on recording police activity, we will discuss another potential obstacle to exercising the right to record the police—state obstruction statutes.

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In an earlier post, we began analyzing whether there is a recognized “right to record the police.” We looked at judicial decisions in Maryland and in Illinois involving each state’s wiretapping statute. In this post, we examine a decision issued in 2007 by the First Circuit Court of Appeals in Jean v. Massachusetts State Police.

Jean presents a slightly different twist on wiretapping prosecution cases than those we examined earlier. In Jean, a political activist posted a videotape on the Internet of a warrantless search of a private residence by the state police. The videotape, taken by the home owner's “nanny-cam,” was assumed by the court to have been taken illegally, in violation of the Massachusetts state wiretapping statute, Mass. Gen. Laws ch. 272 § 99(B)(4)—both audio and video were recorded without the knowledge or consent of the police, and the state wiretapping statute required the consent of all parties in order to record conversations.

Following publication of the video on Jean's website, the state police wrote to Jean and told her to remove the audio portion of the material because it was in violation of the wiretapping statute or face action by legal authorities. Jean then sought a temporary restraining order and preliminary and permanent injunction against the state police’s threatened prosecution under the wiretap statute, citing her right to free speech under the First Amendment.

The trial court granted the plaintiff’s request for preliminary injunction, citing the U.S. Supreme Court’s decision in Bartnicki v. Vopper, 532 U.S. 514 (2001). Bartnicki involved the application of the federal wiretapping statute, 18 U.S.C. § 2511, to the news media’s reporting on an illegally recorded conversation that was legally obtained by the media. Ultimately, after balancing the interests of the government and the news media at stake, the Supreme Court held in Bartnicki that state officials may not constitutionally punish publication of truthful information that was lawfully obtained, “absent a need . . . of the highest order.”

The First Circuit affirmed the trial court’s application of Bartnicki to the facts of Jean. The state wiretapping statute was deemed content neutral, so, to determine the outcome of the case, the court balanced the interests of the state police in criminalizing the plaintiff’s conduct, and the interests of Jean and the public in the “publication of truthful information of public concern.” The state advanced the interest of the government in protecting the privacy of citizens and encouraging the uninhibited exchange of ideas and information among private parties. The court found this interest “virtually irrelevant” as the intercepted communication at issue involved a search by police officers of a private citizen’s home in front of that individual, his family, and several other officers. The second asserted government interest in punishing a subsequent publisher of intercepted information because interceptors were rarely known and could not generally be prosecuted was likewise discounted as the identity of the interceptor (the home owner) was already known.

On the public interest side, the government did not dispute that the videotape involved a matter of public concern. The only way to distinguish the case from Bartnicki, according to the First Circuit, was if the plaintiff obtained the videotape illegally. The court assumed that she did but still held that Bartnicki compelled the conclusion that the plaintiff’s publication on her website of an illegally recorded conversation and search by the police was protected by the First Amendment.

The outcome in Jean is important in particular for those who post videotapes of police altercations filmed by others. Bartnicki stands for the proposition that, absent the highest government interest, the First Amendment bars the government from criminalizing the publication of truthful information about a matter of public concern that is lawfully obtained. Jean appears to go one step further and holds that the First Amendment bars criminalizing the publication of truthful information about a matter of public concern, absent the highest government interest, even if that information was unlawfully obtained—for example, obtained in violation of the wiretapping statute. Either scenario could potentially apply to a citizen or journalist who videotapes (or posts videotape online) of the police in the course of carrying out their official duties.

Of course, unlike the cases we discussed in our earlier post, Jean also involves political speech and express criticism of the government. Jean was an activist and had posted the “nanny-cam” video of the warrantless police search on her website—a website dedicated to criticism of a former district attorney. This kind of government criticism falls into the category of “core” political speech, where First Amendment protection is generally at its highest.  

* * *

We have now examined several cases involving the conflict between recording police activity and state wiretapping statutes.  In a post to follow, we will examine Section 1983 claims asserting First Amendment violations following wiretapping arrests for recording the police. In a final post, we will also explore whether citizens or journalists may run afoul of state obstruction statutes when they record police activity.
 

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According to one recent judicial opinion, Ickes v. Borough of Bedford (W.D. Pa. Dec. 3, 2010), "the issue of police officers arresting citizens for recording them in public has recently been brought to the forefront of the cultural Zeitgeist." From the “don’t taze me, bro” video to lesser known incidents, YouTube and other video content sharing sites are rife with examples of recorded videos of interactions between police and arrestee/detainees. Moreover, the “right” to record or film police officers has received much attention in the news media and the blogosphere.

The First Amendment plainly states, “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” Of course, First Amendment freedoms have never been construed by a majority of the U.S. Supreme Court as “absolute.” So, does the First Amendment provide a right to record the activities of the police in the course of performing their official duties?  

The answer is familiar: Sometimes.

We will explore cases involving the right to record the police in a series of blog posts. This post focuses on whether citizens (including journalists) may, in some states, run afoul of state wiretapping statutes when they record police activities. 

Maryland

When citizens or journalists wish to videotape or otherwise record the activities of the police, one possible obstacle is state wiretapping or surveillance statutes. For example, the Baltimore Sun reported that a Harford County, Maryland, man was indicted for various acts in connection with a police traffic stop, including violation of the state wiretapping statute for taping his own traffic stop and later posting it on YouTube.

A Maryland circuit court judge dismissed the videotaping and Internet posting charges. Even though Maryland’s wiretapping statute, Md. Cts. & Jud. Proc. Code Ann. §§ 10-401, 10-402, requires all parties to a conversation to consent to being recorded, the law also requires the taped material to be a “private conversation” for a violation of the statute to occur. The Harford County judge found no violation of the wiretapping statute because the officer had no reasonable expectation of privacy in the conversation. According to the Sun, the judge wrote that the defendant’s encounter “‘took place on a public highway in full view of the public. Under such circumstances, I cannot, by any stretch conclude that the troopers had any reasonable expectation of privacy in their conversation with the defendant which society would be prepared to recognize as reasonable.’” So, in this case, the citizen was entitled to record his interaction with the police, even without the consent of the police officers involved.

Illinois

In Illinois, however, the law is different. In an order issued in January 2011, the U.S. District Court for the Northern District of Illinois rejected a request for a declaratory judgment and injunctive relief filed by the ACLU of Illinois (ACLU) related to the ACLU’s proposed plan to audio record the police, without consent of the recorded officers, when the officers are performing their public duties in public places. In American Civil Liberties Union of Illinois v. Alvarez, the ACLU sought a declaration that the Illinois Eavesdropping Act, 720 ILCS 5/14, which requires consent of all parties to the recorded conversation, did not apply to the ACLU’s recording program. Members of the ACLU had been prepared to audio record the police while monitoring a Chicago Police Department program of suspicion-less container searches on Chicago’s lakefront and during a protest, but they did not do so for fear of prosecution under the eavesdropping statute. Presumably, the ACLU’s intent was to monitor the police for possible violations of law.

The case had earlier been dismissed for lack of standing, but the plaintiffs moved, in part, to alter the judgment and file an amended complaint to cure any defects in standing. Finding some standing issues to have been remedied, the Northern District of Illinois held that the ACLU had not alleged a “cognizable First Amendment injury.” The court wrote, “[t]he ACLU cites neither Supreme Court nor Seventh Circuit authority that the First Amendment includes a right to audio record.” The court, therefore, found that amending the complaint would be “futile” and denied the motion to alter the judgment and amend the complaint.

In reaching its decision, the district court rejected the ACLU’s argument based on Federal Election Commission v. Akins that a “failure to receive information may constitute a constitutional injury.” The court reasoned that Akins was inapposite as it dealt with a statute requiring the disclosure of information—according to the court, “[d]enial of access to statutorily required disclosures is not analogous to a purported First Amendment right to non-consensual audio recording of police activities.” Moreover, the court agreed with the government that a “willing speaker” must exist to implicate the First Amendment right to free speech. According to the court, “[p]olice officers and civilians may be willing speakers with one another, but the ACLU does not allege this willingness of the speakers extends to the ACLU, an independent third party audio recording conversations without the consent of the participants.” Therefore, the court found the ACLU had no standing to assert a First Amendment injury.

According to the ACLU's website, the district court's opinion has been appealed to the Seventh Circuit.

The ACLU case illustrates an important point about states that have all-party consent wiretapping statutes—i.e., statues that require the consent of all parties to the conversation prior to recording. Arguably, the case would have turned out differently (and would likely never have been brought) if Illinois had a one-party consent statute. The case also illustrates a distinction between audio recording and video recording. Had the ACLU proposed to purely video record instead of audio record the police, perhaps the case would have turned out differently. The Illinois statute, 720 ILCS 5/14-2(a)(1)(A), at issue apparently prohibits the recording of conversations, not images. (Of course, the material may have been less useful without the audio portion as well as the video.)

North Carolina

In North Carolina, although there are no reported cases on the issue, it appears that it would be difficult under the state wiretapping law to prosecute a citizen who videotapes or records the police in the course of carrying out their duties. N.C. Gen. Stat. § 15A-287 provides, in part, “[e]xcept as otherwise specifically provided in this Article, a person is guilty of a Class H felony if, without the consent of at least one party to the communication, the person: (1) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” Section 15A-287, and its definitions (as discussed below), have been interpreted to apply to audio recordings but not video recordings. See Kroh v. Kroh, 152 N.C. App. 347, 351-52, 567 S.E.2d 760, 763 (2002). Thus, the act may prohibit audio recordings where at least one party to the communication does not consent. However, even assuming that the citizen records audio in the videotape recording, it seems likely that the citizen would have (or could obtain) the consent of at least one party to the recording—either herself, if the altercation involves her, or the consent of the suspect who is in the altercation with the police.

Moreover, the definition of “oral communication” is such that it limits the application of the wiretapping statute to communications subject to an expectation of privacy. N.C. Gen. Stat. § 15A-286(17) defines “oral communication” as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation . . . .” Arguably, a police officer and arrestee/detainee would have little or no expectation of privacy during a confrontation in a public place during the course of the officer’s public duties and the arrestee/detainee’s alleged violation of law.

For all these reasons, it seems unlikely that the North Carolina wiretapping statute could be successfully used as a basis to convict a citizen or journalist for videotaping or recording the police in the course of carrying out their duties.  However, as the Illinois case demonstrates, the outcome may vary from state to state.

* * *

In a post to follow, we will review a First Circuit opinion, Jean v. Massachusetts State Police, which represents a slightly different twist on the use of wiretapping statutes to prosecute citizens for recording police activities. Later posts will address Section 1983 claims made by those arrested for wiretapping statute violations when they recorded police activity and potential violations of state obstruction statutes when citizens record the police.

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North Carolina federal district court Judge Louise Flanagan offered a helpful reminder to lawyers last week that the first month of Civil Procedure class really does matter.   The result of her Order in Dutcher v. Eastburn, Da Capo Press, LLC, and Perseus Books, Inc. was that a libel claim brought in North Carolina against two out-of-state publishers and an author from Colorado was dismissed, relieving the defendants from the substantial cost of taking depositions and attempting to get the case dismissed on summary judgment.

The case arose from the publication in late 2007 of a book titled Simon Says: A True Story of Boys, Guns, and Murder, which focused on the grisly murder in rural Colorado of a high school student and his grandparents on New Year's Eve 2000.  Three high school classmates were eventually sentenced for the deaths.

The plaintiff in this case was one son of the murdered grandparents, who happened to be living in North Carolina at the time the book was published.  He objected to a small handful of statements about him in the book and filed suit in Wake County, North Carolina in November of 2008.  In September of 2009, however, the plaintiff voluntarily dismissed that claim.

Then, in April of 2010, the plaintiff re-filed the lawsuit, again in Wake County.  This time the defendants chose to remove the case to federal court and to file a motion to dismiss on the ground that the North Carolina court could not exercise personal jurisdiction over the defendants.

Personal jurisdiction is one of those law school topics that causes most students' eyes to glaze over, but every once in a while it pays to remember those lectures.  The basic idea is that the Constitution requires that a defendant have a certain level of "contacts" with the state in which he or she is being asked to defend a lawsuit.  Those "contacts" might arise from the incident leading to the lawsuit (i.e., a Virginia resident was driving through North Carolina and ran into another car), or they might arise from the general operations of a company (i.e., a Delaware company that has a number of stores and employees in North Carolina).

The question at issue in this case is one that has challenged courts across the country for years -- what are the limits on personal jurisdiction when dealing with the publication of a book, magazine, or newspaper by out-of-state defendants?  The Supreme Court in 1984 handed down a pair of cases -- Calder v. Jones and Keeton v. Hustler Magazine -- that shed considerable light on this thorny issue.

In Calder, the Court held that an out-of-state publisher and author can only be haled into a California court to defend a defamation claim if they "expressly aimed" their activity at California.  The Court held that they had done so in Calder because the entire article focused on actress Shirley Jones, a resident of California, and her career in Hollywood.  The authors had placed several calls to California in reporting the story, and, in short, the story centered around California.  Under those circumstances, the Court held, there were sufficient contacts to support the exercise of personal jurisdiction.

The Court also found sufficient contacts in Keeton based on on the fact that Hustler sold as many as 15,000 copies in New Hampshire every month.  In Keeton, the plaintiff did not even live in New Hampshire, but had chosen that forum because it had a friendly statute of limitations.

 In Dutcher, Judge Flanagan rejected the plaintiff's argument that personal jurisdiction in North Carolina was appropriate because the defendants knew the plaintiff lived in North Carolina at the time the book was published and therefore knew he might be "injured" there by allegedly defamatory statements.  Judge Flanagan distinguished this case with Calder, pointing out that Simon Says had nothing to do with North Carolina and was plainly not "expressly aimed" at North Carolina.

She also rejected plaintiff's "stream of commerce" argument -- i.e., that a handful of copies of the book available for sale in North Carolina created the required "minimum contacts."   Quoting Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939, 945 (4th Cir. 1994), Judge Flanagan held that:

"[t]o permit a state to assert jurisdiction over any person in the country whose product is sold in the state simply because a person must expect that to happen destroys the notion of individual sovereignties inherent in our system of federalism."

Because (1) only 14 copies of the book were sold in North Carolina; (2) no marketing activities for Simon Says were aimed at the state; and (3) the defendant publishers had published only a handful of books over the years that were "aimed" at a North Carolina audience, Judge Flanagan ruled that exercising personal jurisdiction over the defendants in this case would not comport with due process.

Combined with the plaintiff's earlier voluntary dismissal of his first lawsuit, the Court's Order means that the plaintiff's claim is now dismissed with prejudice.  Dutcher has 30 days to decide whether to appeal Judge Flanagan's Order to the Fourth Circuit.

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Earlier today, the federal district court in the Southern District of New York issued a preliminary injunction prohibiting ivi.tv from streaming the programming of the plaintiffs' television stations over the Internet or to mobile phones. The plaintiffs include television stations in New York and Seattle, the major television networks, major television studios, and Major League Baseball.

ivi.tv began live Internet streaming of the programming of television stations located in New York and Seattle on September 13, 2010, to subscribers located anywhere in the United States for a fee of $4.99/month. ivi claimed that it could do so because it was a "cable system" under the Copyright Act. ivi, however, claimed that it was not a "cable system" for purposes of the Communications Act and, therefore, did not need to obtain the retransmission consent of the affected stations.

The court concluded that it is "extraordinarily unlikely that ivi will ultimately be deemed a cable system" under the Copyright Act since ivi neither fit the traditional type of localized delivery systems that are entitled to rely on the statutory license nor agreed to be abide by the FCC's governing rules.

The court entered the following preliminary injunction:

Thus, plaintiffs’ motion for a preliminary injunction is granted and it is hereby ORDERED that defendants . . . and all other persons who are in active concert or participation with any of them who receive actual notice of this injunction by personal service or otherwise, are hereby ENJOINED from infringing by any means, directly or indirectly, any of plaintiffs’ exclusive rights under Section 106 (1) - (5) of the Copyright Act, including but not limited to through the streaming over mobile telephone systems and/or the Internet of any of the broadcast television programming in which any plaintiff owns a copyright.

The court's ruling remains operative during the pendency of the lawsuit.

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The Charlotte Observer was recently on the receiving end of a wave of criticism in response to public records requests it made to local government bodies in the Charlotte area.  The criticism did not stem from what it asked for per se, but rather who did the asking and why.  

As reported by Julie Rose of WFAE in Charlotte, the newspaper compiled tens of thousands of private email addresses by making public record requests of the City of Charlotte, Mecklenburg County, and other localities, seeking the addresses of those who had signed up for local government email updates.  Such email updates could, for example, include notifications from cities as to when official meetings had been scheduled.  An example of one of the newspaper's requests (to the Town of Davidson, North Carolina) is linked here.

As you can see from the link, the person who made the request on behalf of the Charlotte Observer was not a reporter but rather its "Director of Strategic Products and Audience Development."  This led the City of Charlotte to notify its employees of the request, which then prompted much hue and cry, with many leveling the accusation that the newspaper was using the Public Records Act to obtain information for marketing and commercial purposes.  

However, according to the newspaper's editor, the purpose of the request was not commercial in nature.  He indicated the newspaper intended to use the information to ask persons via email "if they would like to occasionally advise us on how we're reporting and what they would like to know more from their government and more about their community."  The newspaper subsequently backed away from that statement and pledged not to use the email addresses, based in part on the outcry voiced on its website and other blogs.  Other negative commentary can be found here and here.

Of course, who was doing the asking and why have no legal consequence whatever under North Carolina's Public Records Act.  The Act specifically provides that the requester cannot be required to disclose the purpose of a request.  And if a list of email addresses is a public record -- and it is if the public body made or received the list in the course of conducting public business -- then it does not matter whether the Charlotte Observer, Duke Energy, or Jane Q. Public asks to inspect a copy of the list.

These legal conclusions, however, are entirely distinct from the reality that what is a public record today may not be tomorrow -- the General Assembly can both giveth and taketh away, and it has created new exceptions to the Act in the past when some particular circumstance or court decision motivated it to do so.  So while the Charlotte Observer was no doubt within its rights to make the requests it made, that does not mean it was a good idea to do so, especially when you take into account the axiom that every action in the public records world can lead to an equal and opposite reaction from the legislative pen.

Despite the Charlotte Observer's pledge, the N.C. League of Municipalities still lists the following as one of its legislative goals for this term:

Seek legislation to protect the privacy of municipal residents by limiting public access to lists of email addresses submitted by citizens to municipalities.

We'll keep you posted on this and other legislative battles over the Public Records Act in North Carolina this year.

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